Filed: Oct. 26, 2018
Latest Update: Mar. 03, 2020
Summary: 17-1451 Xiaoxian Zhou v. Sessions BIA Poczter, IJ A205 427 585 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AMENDED SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DAT
Summary: 17-1451 Xiaoxian Zhou v. Sessions BIA Poczter, IJ A205 427 585 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AMENDED SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA..
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17-1451
Xiaoxian Zhou v. Sessions
BIA
Poczter, IJ
A205 427 585
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
26th day of October, two thousand eighteen.
PRESENT:
DEBRA ANN LIVINGSTON,
RAYMOND J. LOHIER, JR.,
Circuit Judges,
PAUL A. CROTTY,*
District Judge.
_____________________________________
XIAOXIAN ZHOU,
Petitioner,
v. 17-1451
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: VLAD KUZMIN, Kuzmin & Associates,
P.C., New York, NY.
* Judge Paul A. Crotty, of the United States District Court for the Southern District of New
York, sitting by designation.
FOR RESPONDENT: SHARON M. CLAY, Trial Attorney, Office
of Immigration Litigation, (Chad A.
Readler, Acting Assistant Attorney
General, Carl McIntyre, Assistant
Director, on the brief) United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
ADJUDGED, AND DECREED that the petition for review is DISMISSED.
Petitioner Xiaoxian Zhou, a native and citizen of the People’s
Republic of China, seeks review of an April 4, 2017 decision of
the BIA affirming a June 30, 2016 decision of an Immigration Judge
(“IJ”) denying Zhou’s application for cancellation of removal
under 8 U.S.C. § 1229b(b)(1). In re Xiaoxian Zhou, No. A 205 427
585 (B.I.A. April 4, 2017), aff’g No. A 205 427 585 (Immig. Ct.
N.Y. City June 30, 2016). We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
The agency denied cancellation on the ground that Zhou did
not demonstrate that her U.S. citizen children would suffer
exceptional and extremely unusual hardship if she were removed to
China. A nonpermanent resident, such as Zhou, may have her removal
cancelled if, among other factors, she demonstrates that her
“removal would result in exceptional and extremely unusual
hardship” to a qualifying relative, here Zhou’s U.S. citizen sons.
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8 U.S.C. § 1229b(b)(1)(D). “[T]he hardship to an alien’s
relatives, if the alien is obliged to leave the United States,
must be ‘substantially’ beyond the ordinary hardship that would be
expected when a close family member leaves this country.” In re
Monreal-Aguinaga, 23 I. & N. Dec. 56, 62 (B.I.A. 2001) (quoting
H.R. Conf. Rep. No. 104-828, at 213 (1996)).
We have reviewed both the IJ’s and the BIA’s decisions, see
Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006), but because
cancellation is a form of discretionary relief, our review is
limited, see 8 U.S.C. § 1252(a)(2)(B)(i), (D); Barco-Sandoval v.
Gonzales,
516 F.3d 35, 36 (2d Cir. 2008). Although we retain
jurisdiction to review “constitutional claims or questions of
law,” which we review de novo, such claims must be “colorable.”
Barco-Sandoval, 516 F.3d at 36; see
id. at 40 (“[W]e lack
jurisdiction to review any legal argument that is so insubstantial
and frivolous as to be inadequate to invoke federal-question
jurisdiction.”). Accordingly, we must determine whether an
argument “merely quarrels over the correctness of the factual
findings or justification for the discretionary choices, in which
case the court would lack jurisdiction.” Xiao Ji Chen v. U.S.
Dep’t of Justice,
471 F.3d 315, 329 (2d Cir. 2006).
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The issue is whether Zhou has identified a colorable
constitutional claim or question of law regarding the hardship
determination. We conclude she has not. Although the agency may
commit an error of law if it ignores or “seriously
mischaracterize[s]” material facts, see Mendez v. Holder, 566 F.3d
316, 323 (2d Cir. 2009), the record reflects that the IJ and the
BIA considered Zhou’s evidence.
First, Zhou argues that the agency erred in not considering
her husband’s lack of legal status in the United States, as this
meant that the children would have to leave the United States with
Zhou. We disagree with Zhou’s characterization. The IJ and the
BIA acknowledged that Zhou testified she would bring her children
to China upon removal, and thus evaluated the hardship the children
would face in China based on that assertion. This made any
consideration of her husband’s status unnecessary.
Second, Zhou’s arguments regarding household registration
quarrel with the agency’s factual findings, which we do not have
jurisdiction to review. See Xiao Ji Chen, 471 F.3d at 329. Zhou
argues that the IJ erred in assuming that the only negative effects
of a lack of household registration are financial and in concluding
that Zhou would be able to overcome any burden to her children by
paying for services such as education and healthcare. However,
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Zhou does not identify any information in the record regarding the
non-financial harm of non-registration that the agency overlooked.
Zhou asserts that the IJ erred in determining that the
inability to register was a common hardship because the IJ based
this conclusion on the hardship to unregistered Chinese citizens,
not to unregistered U.S. citizens. Again, this is a quarrel with
the agency’s factual findings that we do not have jurisdiction to
review. See Xiao Ji Chen, 471 F.3d at 329. Moreover, as the IJ
noted, Zhou did not document the treatment of foreign-born children
of Chinese citizens. The agency therefore did not overlook any
material evidence. Cf.
Mendez, 566 F.3d at 323.
Finally, the agency did not overlook key evidence regarding
Zhou’s younger son’s asthma or the air quality in China. Zhou
argues that although her son has responded positively to medical
treatment in the United States, he may not have the same positive
response to treatment in China. However, Zhou had the burden to
demonstrate how her son’s asthma would be negatively impacted in
China. See 8 U.S.C. § 1229a(c)(4)(A), (B) (placing burden of
proving eligibility for relief on applicant, providing that IJ may
require corroboration of even credible testimony, and requiring
applicant to produce such evidence unless it cannot be reasonably
obtained). The IJ properly made factual determinations about the
5
seriousness of Zhou’s son’s asthma based on the documentation that
Zhou submitted of her son’s current asthma treatment in the United
States. Zhou has not identified any evidence that the IJ
overlooked regarding either her son’s health or air quality in
China. See Xiao Ji Chen, 471 F.3d at 336 n.17 (“[W]e presume that
an IJ has taken into account all of the evidence before h[er],
unless the record compellingly suggests otherwise.”).
Because Zhou does not raise a colorable constitutional claim
or question of law, we are without jurisdiction to review her
petition further. See 8 U.S.C. §§ 1229b(b)(1)(D), 1252(a)(2)(B),
(D).
For the foregoing reasons, the petition for review is
DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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